Scholes v Secretary of State for the Home Department

Article 2’s investigative duty following a death in custody extends beyond establishing the facts. Where an investigation reveals failures capable of recurrence, the State must consider remedial action and possible improvements.

The duty is flexible as to form. It does not automatically require a full public inquiry into sentencing policy, resource allocation or secure accommodation. A thorough inquest followed by specialist reviews, governmental consideration and public debate may suffice, provided the State confronts the issues and involves the next of kin to an appropriate extent. A sentencing judge ordinarily need not determine where a lawful detention and training order will be served; that responsibility rests with the Secretary of State.

Joseph Scholes, aged sixteen, died by suicide while detained in a young offender institution after receiving a detention and training order. An inquest thoroughly examined the factual circumstances and returned a verdict of accidental death, partly contributed to by failures to recognise and address risk. The Coroner recommended a public inquiry into sentencing, allocation procedures and the availability of suitable secure accommodation.

The Secretary of State refused, referring the issues to the Sentencing Guidelines Council, the Youth Justice Board and an independent operational review. The Administrative Court refused judicial review. The central issue on appeal was whether Article 2 required a further full public inquiry despite the completed inquest and other measures.

1. Appeal dismissed. The Secretary of State was not in breach of Article 2 by refusing to convene a public inquiry.
2. Sentencing and placement. The sentencing judge imposed a lawful detention and training order under sections Powers of Criminal Courts (Sentencing) Act 2000. Section 102(1) placed responsibility for determining the secure accommodation in which the order would be served on the Secretary of State, a responsibility entrusted here to the Youth Justice Board. The sentencing judge was not ordinarily required to investigate or determine the placement. The court left open the possibility that, in an exceptional case, a sentence imposed by a court could itself breach Articles 2 or 3, but held that this sentence was far removed from such a case.
3. Scope of the investigative duty. The inquest had thoroughly investigated the facts. However, following R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796 and Oneryildiz v Turkey [2005] 41 ECHR 20, the State’s duty could require consideration of remedial action and improvements where failures were revealed. Factual investigation alone would not necessarily fulfil Article 2.
4. Form of further investigation. Article 2 did not prescribe a full public inquiry. The statement in Taylor that wider policy questions fell outside Article 2 was not applied in its broad form. The observations in Jordan v United Kingdom [2003] 37 EHRR 2 concerning detailed policy investigations were treated as arising in the context of defective factual investigation. Here, the Sentencing Guidelines Council, the Sentencing Advisory Panel, the Youth Justice Board, governmental reviews and parliamentary scrutiny had confronted the identified issues. Article 2 required consideration of improvements, not that the State find a complete solution to resource and sentencing problems.
5. Jury and family participation. A coroner’s jury was an effective fact-finding body, but its answers were of limited value in assessing resources, policy and administrative procedures. The family had been fully involved in the inquest and subsequent representations, and had been invited to contribute to the specialist review of sentencing. Participation in broad policy questions could properly be less extensive than participation in investigating the facts. It did not require a public inquiry.
6. Additional observations. Arden LJ agreed with Pill LJ and added that the distinction between legal and political questions supported judicial restraint concerning the allocation of public resources. Article 2 did not confer a general right on the public or the bereaved family to participate in political decisions about resource allocation.

• Court of Appeal (Civil Division) — Appeal dismissed.
• Administrative Court, Queen’s Bench Division — Mr Justice Bennett refused the application for judicial review on 16 January 2006.